Bombay High Court
Sachin Suryakant Patil vs State Of Maharashtra Through ... on 13 August, 2021
Bench: K.K. Tated, P. K. Chavan
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3143 OF 2021
Sachin Suryakant Patil ... Petitioner
Versus
State of Maharashtra & Anr. ... Respondents
.........
Mr. Rahul Kadam for the Petitioner.
Mr. R. P. Kadam, AGP for the State.
Mr. Rahul Nerlekar for the Respondent No.2.
.........
CORAM : K.K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE :AUGUST 13, 2021.
P.C. :-
. Heard.
2. By this petition, under Article 226 of the Constitution of India, the
Petitioner is challenging GR dated 04/03/2020 issued by the Government
of Maharashtra so far as it denies serving judicial officers while making
appointments of the Fast Track Court Judges under Fast Tracks Special
Courts.
3. The learned counsel for the Petitioner submits that by this GR
dated 04/03/2020 government had notified that Registry can appoint
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retired persons only. He submits that the said GR is contrary to the
Judgment of the Apex Court in the matter of Brij Mohan Lal Vs. Union of
India reported in (2002)5 SCC 1. He relies on paragraph 10 of the said
order which reads thus:
"10. Keeping in view the laudable objectives with
which the Fast Track Courts Scheme has been
conceived and introduced, we feel the following
directions, for the present, would be sufficient to take
care of initial teething problems highlighted by the
parties:
Directions by the Court:
1. The first preference for appointment of judges of the
Fast Track Courts is to be given by ad-hoc promotions
from amongst eligible judicial officers. While giving
such promotion, the High Court shall follow the
procedures in force in the matter of promotion to such
posts in Superior/Higher Judicial Services.
2. The second preference in appointments to Fast
Track Courts shall be given to retired judges who have
good service records with no adverse comments in
their ACRs, so far as judicial acumen, reputation
regarding honesty, integrity and character are
concerned. Those who were not given the benefit of
two years extension of the age of superannuation,
shall not be considered for appointment. It should be
ensured that they satisfy the conditions laid down in
Article 233(2) and 309 of the Constitution. The
concerned High Court shall take a decision with regard
to the minimum- maximum age of eligibility to ensure
that they are physically fit for the work in Fast Track
Courts.
3. No Judicial Officer who was dismissed or removed
or compulsorily retired or made to seek retirement
shall be considered for appointment under the
Scheme. Judicial Officers who have sought voluntary
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retirement after initiation of Departmental
proceedings/inquiry shall not be considered for
appointment.
4. The third preference shall be given to members of
the Bar for direct appointment in these Courts. They
should be preferably in the age group of 35-45 years,
so that they could aspire to continue against the
regular posts if the Fast Track Courts cease to function.
The question of their continuance in service shall be
reviewed periodically by the High Court based on their
performance. They may be absorbed in regular
vacancies, if subsequent recruitment takes place and
their performance in the Fast Track Courts is found
satisfactory. For the initial selection, the High Court
shall adopt such methods of selection as are normally
followed for selection of members of the Bar as direct
recruits to the Superior/Higher Judicial Services.
5. Overall preference for appointment in Fast Track
Courts shall be given to eligible officers who are on the
verge of retirement subject to they being physically fit.
6. The recommendation for selection shall be made by
a Committee of at least three Judges of the High
Court, constituted by the Chief Justice of the
concerned High Court in this regard. The final decision
in the matter shall be taken by the Full Court of the
High Court.
7. After ad-hoc promotion of judicial officers to the
Fast Track Courts, the consequential vacancies shall be
filled up immediately by organizing a special
recruitment drive. Steps should be taken in advance to
initiate process for selection to fill up these vacancies
much before the judicial officers are promoted to the
Fast Track Courts, so that vacancies may not be
generated at the lower levels of the subordinate
judiciary. The High Court and the State Government
concerned shall take prompt steps to fill up the
consequential as well as existing vacancies in the
subordinate Courts on priority basis. Concerned State
Government shall take necessary decisions within a
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month from the receipt of the recommendations made
by the High Court.
8. Priority shall be given by the Fast Track Courts for
disposal of those Sessions cases which are pending for
the longest period of time, and/or those involving
under-trials. Similar shall be the approach for Civil
cases i.e. old cases shall be given priority.
9. While the staff of a regular Court of Additional
District and Sessions Judge includes a Sessions Clerk
and an office Peon, work in Fast Track Courts is
reported to be adversely affected due to shortage of
staff as compared to regular Courts performing same
or similar functions. When single Orderly or Clerk
proceeds on leave, work in Fast Track Courts gets held
up. The staff earmarked for each such Court are a
Peshkar/Superintendent, a Stenographer and an
Orderly. If the staff is inadequate, High Court and the
State Government shall take appropriate decision to
appoint additional staff who can be accommodated
within the savings out of the existing allocations by the
Central Government.
10. Provisions for the appointment of Public
Prosecutor and Process Server have not been made
under the Fast Track Courts Scheme. A Public
Prosecutor is necessary for effective functioning of the
Fast Track Courts. Therefore, a Public Prosecutor may
be earmarked for each such Court and the expenses for
the same shall be borne out of the allocation under the
head 'Fast Track Courts'. Process service shall be done
through the existing mechanism.
11. A State Level Empowered Committee headed by
the Chief Secretary of the State shall monitor the
setting up of earmarked number of Fast Track Courts
and smooth functioning of such Courts in each State,
as per the guidelines already issued by the
Government of India.
12. The State Governments shall utilize the funds
allocated under the Fast Track Courts Scheme
promptly and will not withhold any such funds or
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divert them to other uses. They shall send the
utilization certificates from time to time to the Central
Government; who shall ensure immediate release of
funds to the State Governments on receipt of required
utilization certificates.
13. At least one Administrative Judge shall be
nominated in each High Court to monitor the disposal
of cases by Fast Track Courts and to resolve the
difficulties and shortcomings, if any, with the
administrative support and cooperation of the
concerned State Government. State Government shall
ensure requisite cooperation to the Administrative
Judge.
14. No right will be conferred on Judicial Officers in
service for claiming any regular promotion on the basis
of his/her appointment on ad-hoc basis under the
Scheme. The service rendered in Fast Track Courts will
be deemed as service rendered in the parent cadre. In
case any Judicial Officer is promoted to higher grade
in the parent cadre during his tenure in Fast Track
Courts, the service rendered in Fast Track Courts will
be deemed to be service in such higher grade.
15. The retired Judicial Officers who are appointed
under the Scheme shall be entitled to pay and
allowances equivalent to the pay and allowance they
were drawing at the time of their retirement, minus
total amount of pension drawn/payable as per rules.
16. Persons appointed under the Scheme shall be
governed, for the purpose of leave, reimbursement of
medical expenses, TA/DA and conduct rules and such
other service benefits, by the rules and regulations
which are applicable to the members of the Judicial
Services of the State of equivalent status.
17. The concerned High Court shall periodically review
the functioning of the Fast Track Courts and in case of
any deficiencies and/or shortcoming, take immediate
remedial measures, taking into account views of the
Administrative Judge nominated.
18.The High Court and the State Government shall
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ensure that there exists no vacancy so far as the Fast
Track Courts are concerned, and necessary steps in
that regard shall be taken within three months from
today. In other words, steps should be taken to set up
all the Fast Track Courts within the stipulated time."
On the basis of these submissions, the learned counsel for the
Petitioner submits that the GR issued by Respondent State is required to
be set aside and direct them to consider the Judges who were in services
for appointment on the Fast Tract Court.
4. The learned AGP for the State submits that he requires some time
to take instructions for filing necessary affidavit.
5. On his request time is granted to file reply on or before
24/08/2021.
6. Matter to appear on board on 27/08/2021.
( PRITHVIRAJ K. CHAVAN, J. ) ( K.K. TATED, J. )
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